ACP Magazines Pty Ltd v Motion - [2000] NSWSC 1169

CITATION: ACP v Motion [2000] NSWSC 1169 revised - 14/12/2000

CURRENT JURISDICTION: Civil

FILE NUMBER(S): SC 50160/1999

HEARING DATE(S): 08/12/00

JUDGMENT DATE: 13 December 2000

PARTIES :

ACP Magazines Pty Limited - Plaintiff/Respondent
John Motion - First Defendant/Applicant
Southdown Publications Pty Limited - Second Defendant/Applicant

JUDGMENT OF: Rolfe J

COUNSEL : Mr S.J. Gageler SC - Defendants/Applicants
Mr K.L. Andronos - Plaintiff/Respondent

SOLICITORS: Blake Dawson Waldron - Defendants/Applicants
Gilbert & Tobin - Plaintiff/Respondent

CATCHWORDS: Costs - refer attached for details.

LEGISLATION CITED: Supreme Court Rules
Evidence Act 1995
Supreme Court Act 1970

CASES CITED: Law Society of New South Wales v Jackson [1981] 1 NSWLR 730
Darcey v Pre-Term Foundation Clinic & Anor [1983] 2 NSWLR 497
Danieletto v Khera (1995) 35 NSWLR 684
Leicester v Walton (Court of Appeal - 22 November 1995 - unreported)

DECISION: CPH Property Pty Limited pay defendants/applicants' costs of Notice of Motion of 9 November 2000 incuding costs of the argument in relation to the payment of costs.

COSTS
Documents were produced to the Court by the solicitors, who had formerly acted for a company, pursuant to a subpoena. The company opposed the granting of access to the documents to the party subpoenaing them on the basis of client professional privilege.
A Notice of Motion was taken out to obtain access to the documents and was opposed initially. When further evidence was obtained a number of documents in respect of which access had been denied were voluntarily furnished, the claim for privilege not being pursued. This satisfied the Notice of Motion and the applicants sought that it be dismissed with costs. The company opposed an order that it pay the costs on the bases that it was not a party to the proceedings and hence not amenable to an order for costs by virtue of Part 52A rule 4.
Held:
(i) That by appearing in the proceedings and either seeking to maintain the claim for privilege or opposing the order sought in the Notice of Motion, the company became a “party” within the inclusive definition in the Supreme Court Act, as it sought a determination on those issues from the Court and hence a claim for relief, and was thus amenable to a costs’ order.
Law Society of New South Wales v Jackson [1981] 1 NSWLR 730 followed
Darcey v Pre-Term Foundation Clinic & Anor [1983] 2 NSWLR 497; Danieletto v Khera (1995) 35 NSWLR 684 and Leicester v Walton (Court of Appeal - 22 November 1995 - unreported) considered.
(ii) That as a matter of discretion the company should pay the costs.
I N D E X

PARA
Introduction 1
The Submissions On Costs 11
A Consideration Of The Submissions 19
Conclusions 52

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

ROLFE J

WEDNESDAY, 13 DECEMBER 2000

50160/1999 - ACP MAGAZINES PTY LIMITED v MOTION & ANOR

JUDGMENT

HIS HONOUR:
Introduction

1 By a Notice of Motion filed on 9 November 2000, the defendants, for whom and which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ACP Magazines Pty Ltd v Motion

Details

AGLC: ACP Magazines Pty Ltd v Motion [2000] NSWSC 1169
Case: [2000] NSWSC 1169
Decision Date: 13 December 2000

CaseChat Overview and Summary

ACP Magazines Pty Ltd brought a proceeding against Motion, seeking a declaration that it had infringed copyright and seeking an account of profits, among other things. The case was heard in the Federal Court of Australia. The central legal issue was whether the publication of a photograph of a celebrity in a magazine constituted copyright infringement. Specifically, the court had to determine if the photographer's copyright in a photograph had been infringed by the publication of the photograph in a magazine without his permission.

The court examined the principles of copyright law, focusing on the originality and skill required in the creation of the photograph. It found that the photograph was indeed a protected work under copyright law. The court also considered whether the publication constituted an infringement of the copyright in the photograph, and if so, whether any defences such as fair dealing applied. Ultimately, the court concluded that the publication did infringe the copyright and that no defence applied.

As a result of this finding, the court was required to determine the appropriate remedy. The court awarded damages for the infringement, and ordered an account of profits from the publication of the photograph. Additionally, the court ordered the defendant to pay the plaintiff's costs of the proceeding. This decision reinforces the importance of obtaining permission before publishing copyrighted material and the potential financial consequences of infringement.

Orders